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Widener Univ. School of Law

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Sunday, October 21, 2007

Beck & Herrmann on my article

A well thought-out post addressing my recent Nebraska Law Review article is here, providing a practitioner's reaction.  (I still have reprints if anyone wants one.)

As a preliminary note, it may be worth noting that I'm only a few years out from active practice and (as I occasionally note) maintain a small consulting practice, largely expert-oriented, so I'm not actually unaware of the realities.

They have three general reactions:

  1. They point out that two-bit clowns can get published in peer reviewed journals.  Indeed they can; I think allowing some level of discovery into the peer review process will help clarify that the fact of peer review does not constitute a guarantee of quality, thus perhaps mitigating the harm of this fact.  I certainly don't think anything I suggest would exacerbate the practice. 

    They also note that "litigation-driven scholarship" is much broader than well-credentialed people, and that's absolutely true too.  My primary example comes from a well-credentialed scholar, but I don't mean to suggest that there's not a whole lot of quackery out there.
  2. Work done by non-testifying experts can be hidden from view forever; pharma research that isn't published is still discoverable.  True, and a relevant point.
  3. Nobody knows how much work done by retained plaintiffs' experts doesn't work out -- i.e., how many times the studies fail.  Beck & Herrmann note that it'd be interesting to find out the answer to that empirical question.  Indeed it would.

--BC

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